Severn v. Adidas Sportschuhfabriken

33 Cal. App. 3d 754, 109 Cal. Rptr. 328, 1973 Cal. App. LEXIS 931

• Court: California Court of Appeal
• Decided: August 1, 1973
• Docket: Civ. 31658
• Status: Published

Opinions

Opinion

ELKINGTON, J.

Plaintiff Clifford Severn, doing business as Clifford Severn Sporting Goods, commenced an action in California against the three defendant European corporations named in the caption and defendant Horst Dassler, a resident of France. It is conceded (at least no one contends otherwise on this appeal) that defendants had “certain minimum contacts with [California] such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” (See Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316 [90 L.Ed. 95, 102, 66 S.Ct. 154, 161 A.L.R. 1057]; Atkinson v. Superior Court, 49 Cal.2d 338, 345-346 [316 P.2d 960] [cert. den., 357 U.S. 569 (2 L.Ed.2d 1546, 78 S.Ct. 1381)].) California’s courts thus had jurisdiction over the subject matter of the action. (See Code Civ. Proc., § 410.10.) Defendant Horst Dassler was one of the persons described by Code of Civil Procedure section 416.10 as authorized to- receive service of summons on behalf of the defendant corporations.

One of the defendant corporations had commenced an action in the United States District Court in Florida. While attending that state for the sole purpose of giving his deposition in the federal court litigation, Horst Dassler was personally served with summons in the California action on behalf of himself and the defendant corporations.

Thereafter, in the California action, the defendants moved to quash the service of summons made upon them in Florida. The motion was based upon the so-called “immunity rule” which is stated by Corpus Juris Secundum as follows:

“Generally, witnesses in attendance on a court outside the territorial jurisdiction of their residence are immune from service of civil process while attending court and for a reasonable time before and after in going to, and returning from, court.” (72 C.J.S., Process, p. 1112, § 80, subd. a. (1).) The rule is sometimes applicable to litigants, their attorneys, and others.

The superior court, on the basis of the immunity rule, entered an order granting defendants’ motion. The instant appeal was taken by plaintiff Clifford Severn from that order.

The immunity rule is of common law origin, going back at least to the reign of Henry VI, and to a time when process (summons) was given effect by the body attachment, or arrest, of the defendant. (See 62 Am.Jur.2d, Process, § 136, p. 919; Powers v. Arkadelphia Lumber Co. (1896) 61 Ark. 504 [33 S.W. 842, 843]; Mertens v. McMahon (1933) 334 Mo. 175 [66 S.W.2d 127, 131, 93 A.L.R. 1285]; Fisher v. Bouchelle, 134 W.Va. 333 [61 S.E.2d 305, 308]; Wangler v. Harvey (1963) 41 N.J. 277, 284 [196 A.2d 513].) Its initial purpose was clear; it was to' prevent the disruption of judicial proceedings which would usually attend the arrest of an attending witness. And it was calculated to allay the witnesses’ fear of such arrest, thus encouraging them to voluntarily appear and aid in the administration of justice. Originally the rule applied with equal force to nonresidents of the state, and residents of the state who were nonresidents of the county from which the process issued or in which it was served. (See Jacobson v. Hosmer (1889) 76 Mich. 234 [42 N.W. 1110, 1111]; Hicks v. Besuchet (1898) 7 N.D. 429 [75 N.W. 793, 794-795]; Lingemann v. Dehnke (1929) 247 Mich. 597 [226 N.W. 259, 65 A.L.R. 1367]; Hixon v. Chamberlin (1926) 116 Okla. 77 [243 P. 183, 184, 46 A.L.R. 313]; Mertens v. McMahon, supra, 66 S.W.2d 127, 130; Cotton v. Frazier (1936) 170 Tenn. 301 [95 S.W.2d 45, 47]; Meyers v. Barlock (1937) 281 Mich. 629 [275 N.W. 656, 657]; Tipton v. District Court of Fifth Judicial Dist. (1953) 74 Idaho 65 [256 P.2d 787, 789].)

Through the years the immunity rule appears to have developed in a very haphazard fashion. Majority and minority rules, “voluntary” and “compulsory” tests, and other conflicting applications have appeared. (See generally, 62 Am.Jur.2d, Process, § § 136-156, pp. 919-940; 72 C.J.S., Process, §§ 80-89, pp. 1112-1128.) This juridical confusion is pointed up in American Jurisprudence, Second, where discussing the rule’s application in a criminal case, it is stated: “Five views have been taken, namely: that a nonresident appearing voluntarily is immune, and that he is not immune; that a nonresident appearing compulsorily is immune, and that he is not immune; and that he is immune whether his appearance is considered as voluntary or compulsory.” (62 Am.Jur.2d, Process, § 152, p. 935.) A California reviewing court in 1930 found the conflicting authority on the subject “of but little aid” in its resolution of a witness immunity problem. (Von Kesler v. Superior Court (1930) 109 Cal.App. 89, 90 [292 P. 544].)

There has been much criticism of the immunity rule.

It is said: “The immunity cases have in most instances been determined by a sentimentality singular in the law. The courts have often been preoccupied with concepts anachronistic at best with the result that the unfortunate [suitor seeking to serve summons] everywhere has been bearing a burden founded on neither good sense nor good law. [f] The time is surely at hand when the problem of immunity should be reexamined and more rational and liberal solutions, wherever they are needed, arrived at.” (Keeffe & Roscia (1947) 32 Cornell L. Q. 471, 489.) In 1963 the Supreme Court of New Jersey (Wangler v. Harvey, supra, 41 N.J. 277, 285), observing that “The doctrine of immunity moves in a direction wholly inconsistent with today’s concept of justice,” refused to apply the rule. The court (at pp. 285-286) stated: “We"conclude that the problem of immunity is best disposed of by the application of the doctrine of forum non conveniens. Under this concept a court can prevent the imposition upon its jurisdiction of the trial of causes when it determines that for convenience of the litigants and witnesses, and in the interest of justice, the action should be instituted in another forum.” And in 1972 an appellate court of Pennsylvania stated: “In view of the ease of modern transportation and communication, in view of new procedural methods for obtaining trial evidence from witnesses who are out of the jurisdiction, and in view of expanding concepts for the exercise of jurisdiction, perhaps the time has come for the total ehmination of the immunity rule, but that issue need not be decided at this time.” (Fns. omitted.) (Fahy v. Abattoir, 223 Pa. Super. 185 [299 A.2d 323, 325].)

The immunity rule was brought into clearer focus by the United States Supreme Court in" Lamb v. Schmitt (1932) 285 U.S. 222, 225-226 [76 L.Ed. 720, 722-723, 52 S.Ct. 317], in this manner:

“The general rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit are immune from service of process in another, is founded, not upon the convenience of the individuals, but of the court itself. ... As commonly stated and applied, it proceeds upon the ground that the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation. ... In Stewart v. Ramsay [242 U.S. 128], the court said (p. 130), quoting from Parker v. Hotchkiss, Fed. Cas. 10,739:

“ ‘The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify.’

“It follows that the privilege should not be enlarged beyond the reason upon which it is founded, and that it should be extended or withheld only as judicial necessities require. . . . Limitations of it on this basis have been not infrequently made because the attendance upon the trial of a cause, however vital to the personal interests of those concerned, was not for the purpose of facilitating the progress of-the cause. ... or because the service was made on one whose attendance was not voluntary, and hence had no tendency to interfere with judicial administration.”

California has adopted, and often applied, the rule as it was announced in Lamb v. Schmitt. (See Velkov v. Superior Court (1953) 40 Cal.2d 289, 291-292 [253 P.2d 25, 35 A.L.R.2d 1348]; Gaines v. Superior Court (1961) 196 Cal.App.2d 749, 753 [16 Cal.Rptr. 909]; St. John v. Superior Court (1960) 178 Cal.App.2d 794, 799 [3 Cal.Rptr. 535, 84 A.L.R.2d 415]; Horn v. Superior Court (1949) 94 Cal.App.2d 283, 285 [210 P.2d 518]; and see also Mattison v. Lichlyter (1958) 162 Cal.App.2d 60, 64 [327 P.2d 599]; Franklin v. Superior Court (1950) 98 Cal.App.2d 292, 295 [220 P.2d 8]; Murrey v. Murrey (1932) 216 Cal. 707, 710-712 [16 P.2d 741, 85 A.L.R. 1335] [cert. den., 289 U.S. 740 (77 L.Ed. 1487, 53 S.Ct. 658)].)

From Lamb v. Schmitt and the California authority we have cited, three distinct principles are made apparent.

First, the immunity rule extends no rights to the nonresident witness; it exists for the convenience and benefit of the court alone.

Secondly, the rule applies only where the nonresident witness voluntarily enters the territorial jurisdiction of the judicial proceedings. This principle rests on the premise that the witness would be secure against in personam process as long as he remained out of that jurisdiction: Witnesses who could choose to remain away would be encouraged by the immunity rule to enter in aid of “the judicial administration in the pending litigation.” Such an inducement is not necessary for those who in one way or another are compelled to enter the jursdiction; hence, as to them the immunity rule will not apply. An often expressed justification of the rule is that unless the witness voluntarily comes into the jurisdiction “there will be no opportunity to serve any process on him.” (Hardie v. Bryson (E.D.Mo. 1942) 44 F.Supp. 67, 71; Malloy v. Brewer (1895) 7 S.D. 587 [64 N.W. 1120, 1122]; Sherman v. Gundlach (1887) 37 Minn. 118 [33 N.W. 549, 550]; 72 C.J.S., Process, § 80, p. 1112.) And it is said that if the rule did not exist, “the nonresidents would not [go into the foreign state], and service of summons on them could not be made.” (Breon v. Miller Lumber Co. (1909) 83 S.C. 221 [65 S.E. 214, 215]; Cooper v. Wyman (1898) 122 N.C. 784 [29 S.E. 947]; 62 Am.Jur.2d, Process, § 137.)

The third principle is that the witness immunity “privilege should not be enlarged beyond the reason upon which it was founded, and that it should be extended or withheld only as judicial necessities require.” (Lamb v. Schmitt, supra, 285 U.S. at p. 225 [76 L.Ed. at pp. 722-723].)

California has a strong public policy supporting, as capsulized by Mr. Witlcin, “the right of a creditor to sue in the courts of the state in which he can find and serve the debtor.” (2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 581, p. 1393, and see Murrey v. Murrey, supra, 216 Cal. 707, 710; People v. Wilson, 213 Cal.App.2d 290, 292 [28 Cal.Rptr. 675].) This policy has been given expression by California’s recently enacted Code of Civil Procedure sections 410.10-418.10 (pt. 2, tit. 5, entitled “Jurisdiction and Service of Process”). Expanding the reach of this state’s process, section 410.10 now provides: “A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”

Further implementing this policy is Code of Civil Procedure section 413.10 which, as pertinent, states: “Except as otherwise provided by statute, a summons shall be served on a person: . . . (b) Outside this state but within the United States, as provided in this chapter [relating generally to the service of process in California] or as prescribed by the law of the place where the person is served, (c) Outside the United States, as provided in this chapter, or [under certain circumstances] as prescribed by the law of the place where the person is served . . . .” (Italics added.)

By section 413.10 the Legislature has made it clear that, notwithstanding the law of the foreign jurisdiction where California’s judicial process is served, such service is valid if made in a manner permitted by California’s laws.

Our first inquiry is whether the service of summons in Florida on Horst Dassler, for himself and the defendant corporations, was made in a manner permitted under the laws of California. This leads us to the question whether Dassler, as a nonresident witness under the circumstances of the record before us, would be immune from service of summons under the law of this state.

We consider the third principle of the immunity rule as announced by Lamb v. Schmitt, supra, 285 U.S. 222, 225, and iterated by Gaines v. Superior Court, supra, 196 Cal.App.2d 749, 753, and St. John v. Superior Court, supra, 178 Cal.App.2d 794, 799: “ ‘[T]he privilege should not be enlarged beyond the reason upon which it is founded, and ... it should be extended or withheld ... as judicial necessities require.’ ” The same rule was stated in Murrey v. Murrey, supra, 216 Cal. 707, 710: “[T]he [immunity] privilege should not be extended beyond the reason of the rule upon which it is founded.” (See also-: Fitzhugh v. Reid (RD.Ark. 1918) 252 F. 234; Lyf-Alum, Inc. v. C & M Aluminum Supply Corporation (1966) 29 Wis.2d 593, 599 [139 N.W.2d 601].)

As pointed out, often in the history of our nation, and perhaps even in the present day, judicial process .of a county court loses its force at the county boundaries. (See 72 C.J.S., Process, § 8, subd. b., pp. 997-998.) In such situations in personam process may not be served in any other county of the state. As said in Fisher v. Bouchelle, supra, 61 S.E.2d 305, 308, “[A] defendant residing in another county would not be required to come into the county where the cause of action arose, and thereby [would] be able to avoid the service of process in the county in which the cause of action arose.” This situation called for application of the immunity rule, for it encouraged witnesses of one county to enter another without fear of being served with the latter county’s process.

But gradually the states extended the reach of their counties’ process to the states’ borders. Since this permitted service of process on a state resident in any county of the state, the county of his residence no longer offered him asylum from another county’s process. The reason for the immunity rule no longer existed in such cases. Recognizing this, courts began to deny application of the rule as between counties. In Fisher v. Bouchelle, supra, 61 S.E.2d 305, 308, the court stated that it had “never considered the immunity as existing where the service of process could be had in the county in which the defendant resided.” In 1892, Missouri’s civil process was effective throughout the state. Rejecting application of the immunity rule as between counties, the state’s Supreme Court stated: “It is said that public policy demands that suitors, witnesses, etc., should be privileged from the service of civil process while attending court, lest they be deterred from attending, and thus the administration of justice be obstructed. However, this might be as to nonresident witnesses, as to whom no process could issue, or as to nonresident suitors, as to whom it would be improper now to speak, it is sufficient to say that as to witnesses resident in this state we have process by which their attendance can be compelled from any part of this state, . . . Moreover, it could hardly be deemed the public policy of this state to deny the service of civil process on a party attending court, when we have a statute (section 2021) whereby a plaintiff may have a summons directed to ‘any sheriff in the state of Missouri,’ . . .” (Christian v. Williams, 111 Mo. 429 [20 S.W. 96, 99].)

We observe that until recently the force of California’s in personam judicial process ended at the state’s borders. (See 40 Cal.Jur.2d, Process, § 5, and the authorities there collected.)

But as we have indicated, in 1969 California’s jurisdiction and service of process statutes were updated and liberalized. The Legislature enacted Code of Civil Procedure sections 410.10, 413.10 and 415.10 which, where jurisdiction over the subject matter exists, collectively authorize personal service of summons on a defendant: “Within this state, . . . Outside this state but within the United States [and] Outside the United States, ...” And as previously indicated such service outside the state may be made in the manner permitted by California law.

By virtue of these statutes, the reason for the immunity rule no longer exists in California, for nonresident witnesses and others may no longer remain in the state or country of their residence secure from the reach of this state’s process. The rule no longer offers encouragement to nonresidents, who otherwise would be immune from service of its process, to enter this state in aid of its “judicial administration.”

And since Horst Dassler and the defendant corporations could have been served at their places of residence or business in Europe, the rule has no legitimate application to them.

As we have pointed out, the immunity rule may not be applied where the reason for its application is no longer valid, or where it is not required by “judicial necessities.” We therefore hold that it is no longer the law of California.

It has been suggested, however, that under principles of interstate comity we should concern ourselves with the law of the jurisdiction where service of summons was effected on Horst Dassler and the defendant corporations, i.e., the law applied by the federal court or perhaps, by Florida.

As must by now be clear, it is the public policy of California that its suitors may serve process on their debtors wherever they may be found, whether in or out of the state.

It is a widely settled principle of the doctrine of interstate comity that foreign laws will not be given effect when contrary to the law, or public policy, or general interest of the citizens of the state of the forum. (Biewend v. Biewend, 17 Cal.2d 108, 113 [109 P.2d 701, 132 A.L.R. 1264]; Estate of Henning, 128 Cal. 214, 220 [60 P. 762]; Whitney v. Dodge, 105 Cal. 192, 199 [38 P. 636]; Weisz v. Weisz, 19 Cal.App.3d 676, 682 [97 Cal.Rptr. 18]; Klinker v. Klinker, 132 Cal.App.2d 687, 697 [283 P.2d 83]; Thome v. Macken, 58 Cal.App.2d 76, 79 [136 P.2d 116].) This rule is recognized and upheld by the federal courts. (Wallan v. Rankin, 173 F.2d 488, 492; Anderson v. Hearst Pub. Co., 120 F.Supp. 850, 855.)

It follows that even if the immunity rule followed by the federal courts or the State of Florida should differ from that adopted by California, the public policy and law of this state would determine the validity of the service of process on Dassler.

Further, we observe that the federal courts also follow the immunity rule as pronounced by Lamb v. Schmitt, supra, 285 U.S. 222, the latest expression of the United States Supreme Court on the subject. (See Walker v. Calada Materials Company, 309 F.2d 74, 76; Greene v. Weatherington, 301 F.2d 565, 567-568 [112 App.D.C. 241]; Government of the Dominican Republic v. Roach, 280 F.2d 59, 61 [108 App.D.C. 51] [cert. den. 364 U.S. 878 (5 L.Ed.2d 101, 81 S.Ct. 166)]; Kauffman v. Kennedy, 25 F. 785, 785-786; Morse-Koob v. Milner Export & Trading Co., 93 F.Supp. 344, 345.) So also does Florida. (See State v. Circuit Court of Eleventh Judicial Circuit (Fla.) 51 So.2d 792.)

Since Horst Dassler and the corporate defendants were subject to service of California’s process in Europe, neither the federal courts nor Florida could have any legitimate interest in applying the immunity rule; it was not required by judicial necessity, the reason for its application having vanished.

It seems proper to point out that if the commencement of Clifford Severn’s action in California, or the service of summons in Florida, results in the unfairness of an “inconvenient forum” to defendants, Code of Civil Procedure section 410.30 is available for relief.

For the reasons stated the order quashing service of summons is reversed.

Molinari, P. J., concurred.